Opinion
May 11, 1995
Appeal from the County Court of Washington County (Hemmett, Jr., J.).
Mikoll, J.P.
On this appeal, defendant requests that this Court grant him youthful offender status or, in the alternative, a reduction of the sentence imposed of 1 to 3 years' imprisonment. He contends that County Court abused its discretion in denying him youthful offender status.
While we cannot say that the denial of defendant's application for youthful offender treatment was an improvident exercise of discretion, nonetheless we choose, in the interest of justice, to vacate the conviction and adjudicate defendant a youthful offender. The relevant facts justify such intercession where, as here, defendant was 16 years old when the offense was committed; the acts were consensual in nature; the victim, defendant's niece, then 13 years of age, was reluctant to prosecute and expressed the feeling that defendant should not be prosecuted; the acts involved were in the nature of youthful sexual exploration; there was no force or intimidation involved; defendant is of limited educational and mental aptitude and has no prior criminal record.
For all these reasons, we opt to exercise our discretion in granting defendant youthful offender status. The ends of justice will be served by relieving defendant from the onus of a criminal record (see, People v Drayton, 39 N.Y.2d 580; People v Andrea FF., 174 A.D.2d 865, 866-867; People v Cruickshank, 105 A.D.2d 325, 334, 335, affd sub nom. People v Dawn Maria C., 67 N.Y.2d 625).
Crew III, and Yesawich Jr., JJ., concur.
Ordered that the judgment is reversed, as a matter of discretion in the interest of justice, conviction vacated, defendant is declared to be a youthful offender and matter remitted to the County Court of Washington County for resentencing.
Because we are not persuaded that there exist compelling circumstances justifying our exercise of interest-of-justice jurisdiction (compare, People v Andrea FF., 174 A.D.2d 865), we would affirm.
Peters, J., concurs.